Opposition Brief — Hagelin v. Federal Election Commission

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No. 96-1286

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OCTOBER TERM, 1996

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JOHN HAGELIN, ET AL., PETITIONERS

FEDERAL ELECTION COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

LAWRENCE M. NOBLE

General Counsel

RICHARD B. BADER

Associate General Counsel

VIVIEN CLAIR

Attorney

Federal Election Commission

Washington, D.C. 20463

QUESTIONS PRESENTED

Section 437g(a)(8)(A) of the Federal Election Cam-

paign Act of 1971 (FECA) provides that

[aJny party aggrieved by an order of the Com-

mission dismissing a complaint filed by such party

under [Section 437g(a)(1)], or by a failure of the

Commission to act on such complaint during the

120-day period beginning on the date the complaint

is filed, may file a petition with the United States

District Court for the District of Columbia.

2 U.S.C. 487g(a)(8)(A). The questions presented are:

1. Whether petitioners’ suit is moot where, be-

cause of the passage of time, the 120-day statutory

period, from which petitioners sought an exemption,

no ionger precludes judicial review of their admin-

istrative complaint.

2. Whether the district court had jurisdiction over

petitioners’ suit with respect to alleged violations of

the Act that are the subject of an administrative com-

plaint pending before the Federal Election Commis-

sion, prior to the expiration of the 120-day statutory

period.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Cost ¥. Aah; GBB UB. G6. CIGTG) .cccciccesiseccccsscssccssccese 9

Dove v. United States, 423 U.S. 325 (1976) ............. 8

FEC v. National Conservative Political Action

Committee, 470 U.S. 480 (1985) .........scccsseseeeeeeees 10, 11

Gabauer v. Woodcock, 594 F.2d 662 (8th Cir.), cert.

denied, 444 U.S. 841 (1979) ............cccccccssccssseeeseseees i)

Information Resources, Inc. v. United States, 950

re Ree NOE API RIUID Kindncheiestdentcnocbasendssonvecerasess 11

Lewis v. Continental Bank Corp., 494 U.S. 472

SUE Aicialiide cia edinddchtabcacabdbasdbiaskadimapbiecanssaetwosekece 6

McNamara v. Johnston, 522 F.2d 1157 (7th Cir.

1975), cert. denied, 425 U.S. 911 (1976) ................... 9

Murphy v. Hunt, 455 U.S. 478 (1982) ................00 6, 7

Nebraska Press Ass’n v. Stuart, 427 U.S. 539

I Bh viii ent cca tad ak icns dicen bdbsiaidabiataaepaagabiedgsiawins 7

North Carolina v. Rice, 404 U.S. 244 (1971) ........... 6

United Public Workers of America v. Mitchell, 330

RE seas IINNIEE -scibisihsdasni ties cane dtickoloudbianacanasiiehiaenities 6

United States v. Gonzales, No. 95-1605, 1997 WL

I I i a selinnndarnnanndects 10

United States v. Munsingwear, 340 U.S. 36

Statutes, regulation and rules: Page

Federal Election Campaign Act of 1971, 2 U.S.C.

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ea. CER: Bis cca icsccostnichoresiiledectarcvaiveiaonaensnttaaanpacigs 8

Miscellaneous:

Robert L. Stern, Eugene Gressman, Stephen K.

Shapiro and Kenneth S. Geller, Supreme Court

Practsee CU: O68; 3OUB) sicsnincsscicinscisirinndatassietdisiaisies. 8-9

13A Charles Alan Wright, Arthur R. Miller and

Edward H. Cooper, Federal Practice and Procedure

(Sd oc, 2OG4 Ge See: TRIG oo cciscivccesccscenssssivkisccaatieeson 9

§n the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-1286

JOHN HAGELIN, ET AL., PETITIONERS

Vv.

FEDERAL ELECTION COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A15) is reported at 97 F.3d 553. The district court’s

oral ruling (Pet. App. A16-A38) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 4, 1996. A petition for rehearing was denied

on October 15, 1996. Pet. App. 34. The petition for a

writ of certiorari was filed on February 12, 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. The Federal Election Campaign Act of 1971

(FECA), 2 U.S.C. 431 et seqg., permits “[aJny person

who believes a violation of thfe] Act * * * has

occurred” to file a signed and sworn complaint with

the Federal Election Commission (FEC or Commis-

sion). 2 U.S.C. 437g(a)(1). The FECA sets forth

detailed procedures that the Commission must follow

when it receives a complaint under Section 437g(a)(1).

Within five days, the Commission must notify any

person alleged in the complaint to have violated the

Act, and that person (the respondent) then has 15 days

to demonstrate, in writing, why no action should be

taken against it. Jbid. The Commission may then

vote on whether it has “reason to believe” that the

respondent has violated the Act. 2 U.S.C. 437g(a)(2).

If the Commission makes that determination, it noti-

fies the respondent of the alleged violation and con-

ducts an investigation. Jbid. If, at the close of the

investigation, the Commission’s General Counsel

recommends that the Commission vote on whether

there is “probable cause” to believe the respondent

violated the Act, the respondent must be provided

with a brief by the General Counsel and be given 15

days to submit a responsive brief. 2 U.S.C. 437g(a)(8).

If the Commission determines that probable cause

exists, it must attempt for at least 30 days (or, if an

election is imminent,.at least 15 days) to correct the

violation by informal methods and to enter into a

conciliation agreement. 2 U.S.C. 487g(a)(4)\ 4)(i) and

(ii). If the Commission is unable to correct a violation

by informal methods, it may institute a.civil enforce-

ment action in federal district court. 2 U.S.C.

437g(a)(6)(A).

Section 437g(a)(8)(A) of the FECA provides that

[aJny party aggrieved by an order of the Com-

mission dismissing a complaint filed by such party

under [Section 437g(a)(1)], or by a failure of the

Commission to act on such complaint during the

120-day period beginning on the date the complaint

is filed, may file a petition with the United States

District Court for the District of Columbia.

2 U.S.C. 437g(a)(8)(A). Under Section 437g(a)(8), the

court “may declare that the dismissal of the com-

plaint or the failure to act is contrary to law, and may

direct the Commission to conform with such declara-

tion within 30 days.” 2 U.S.C. 487g(a)(8\(C). If the

Commission fails to so conform, “the complainant

may bring, in the name of such complainant, a civil

action to remedy the violation involved in the original

[administrative] complaint.” Ibid.

2. Petitioners in this case are the Natural Law

Party of the United States and that party’s 1996

presidential and vice-presidential nominees. On

September 6, 1996, petitioners filed an administrative

complaint with the FEC. The complaint alleged that

the Commission on Presidential Debates (CPD), a

private, nonprofit corporation formed to sponsor de-

bates by presidential and vice-presidential candidates,

had adopted unlawful criteria for the selection of

participants in its upcoming 1996 presidential

debates. Petitioners contended that the selection

criteria violated Section 441b of the FECA, 2 U.S.C.

441b, and an FEC regulation, 11 C.F.R. 110.18, that

permits certain nonprofit corporations to sponsor

candidate debates without violating Section 441b’s

prohibition of corporate contributions. Petitioners

requested that the Commission expedite its con-

sideration of their complaint so that they would have

an opportunity to take further legal action before the

first debate, which was scheduled for October 6, 1996.

Pet. App. A6, A19.

3. One week later, on September 13, 1996, peti-

tioners filed suit against the Commission and the

CPD in the United States District Court for the

District of Columbia. The complaint sought as relief

an order enjoining CPD from employing the chal-

lenged selection criteria and, in the alternative,

an order compelling the Commission to take immedi-

ate action on petitioners’ administrative complaint

against CPD. See Pet. App. A6é.

In expedited proceedings, the district court con-

solidated petitioners’ motion for preliminary injunc-

tive relief with a hearing on the merits on October 1,

1996.' At the conclusion of that hearing, the court

denied petitioners’ request for preliminary injunctive

relief and dismissed their claims for lack of subject

matter jurisdiction. The court explained that Con-

gress had granted the Commission “exclusive pri-

mary jurisdiction” to consider civil claims under the

Act, and that the Act precluded the court from

exercising jurisdiction in such matters until the

Commission took final action, or until 120 days after

petitioners’ administrative complaint had been filed.

See Pet App. A7, A23-A25.

4. The court of appeals granted expedited review.

On October 4, 1996, it affirmed the district court’s

1 That hearing was, in turn, combined with a hearing in

another case against the Commission and CPD brought by the

presidential and vice-presidential candidates of the Reform

Party, who had also filed an administrative complaint with the

Commission. Pet. App. A19.

————— a>

dismissal of petitioners’ claims -on jurisdictional

grounds. Pet. App. Al-Al5. The court of appeals

“agree[d] with the district court that it lacked

jurisdiction to adjudicate the validity of the com-

plaints filed with the FEC or to order the FEC to do

so before the CPD-sponsored debate on October 6,

1996.” Id. at A8. Congress, the court stated, “could

not have spoken more plainly in limiting the jurisdic-

tion of federal courts to adjudicate claims under the

FECA.” Ibid. (citing 2 U.S.C. 437¢(b)(1), 487d(e)).

The court observed that “Section 437g requires the

FEC to proceed with due deliberation after it receives

a complaint alleging violations of the Act.” Pet. App.

A8. In light of that administrative framework, the

court concluded that it could not “ignore these elabo-

rate statutory requirements and force the FEC to act

immediately because otherwise [petitioners] would

suffer irreparable harm.” Jd. at A9.

Finaily, the court observed that, “[e]ven if we could

somehow ignore the jurisdictional requirements of

§ 437g(a),” petitioners “could not achieve the result

[they] seek[].” Pet. App. Al0. The court explained

that it would have authority to order the Commission

to take action only if the Commission’s failure to act

were contrary to law. “Since the FEC is given 120

days to act on a submitted complaint, § 437g(a)(8)(A),

its delay in this case is neither unlawful nor

unreasonable.” Jd. at All.”

2 A suggestion for rehearing en banc was denied on October

15, 1996. See Pet. App. A34.

ARGUMENT

Petitioners seek review of the court of appeals’

decision that the district court lacked jurisdiction to

consider their claim before the expiration of the 120-

day statutory period. Because the statutory period

has now expired, and because the Presidential debates

that petitioners sought to challenge have taken place,

the question presented by the petition is now moot.

Moreover, because the decision below would not

otherwise warrant this Court’s review, the petition

should be denied.

1. Petitioners seek a ruling from this Court that

the district court had jurisdiction to consider their

claims before the expiration of the statutory period.

See, e.g., Pet. 18. Because that period expired on

January 4, 1997, the 120-day restriction no longer

precludes judicial review of petitioners’ claim, and

petitioners cannot benefit from the relief they seek

here. The question presented by the petition is there-

fore moot. See, e.g., Murphy v. Hunt, 455 U.S. 478,

481 (1982) (“In general, a case becomes moot when the

issues presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the outcome.”)

(internal quotation marks omitted); Lewis v. Conti-

nental Bank Corp., 494 U.S. 472, 477 (1990) (“Article

Ill denies federal courts the power ‘to decide ques-

tions that cannot affect the rights of litigants in the

case before them.’”) (quoting North Carolina v. Rice,

404 U.S. 244, 246 (1971)); see also United Public

Workers of America v. Mitchell, 330 U.S. 75, 89-90

(1947) (federal court may not issue declaratory judg-

ment if claim has become moot).

Petitioners contend (Pet. 15) that the question

whether the district court had jurisdiction over their

claim is not moot because they plan to participate in

the political process for elections in the year 2000.

That contention miscomprehends this Court’s moot-

ness jurisprudence.

The Court has recognized a narrow exception to

the mootness doctrine for disputes that are “capable

of repetition, yet evading review.” See, e.g., Nebraska

Press Ass’n v. Stuart, 427 U.S. 539, 546 (1976). As

this Court has explained:

[IJn the absence of a class action, the “capable of

repetition, yet evading review” doctrine [is] lim-

ited to the situation where two elements com-

bine[]: (1) the challenged action was in its dura-

tion too short to be fully litigated prior to its ces-

sation or expiration, and (2) there [is] a reasonable

expectation that the same complaining party

would be subjected to the same action again.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

Accord Murphy v. Hunt, 455 U.S. at 482.

This case does not meet the second element of that

test; it is highly speculative whether petitioners will

file an administrative complaint with the Commission

with respect to debates for elections in the year 2000.

Moreover, there is no “reasonable expectation” that,

in the future, petitioners will file an administrative

complaint so close to the date of scheduled debates

that the Commission will lack adequate time in which

to resolve theggmplaint’ To the contrary, it should

’ Unlike judicial proceedings, the administrative complaint

procedure that is afforded by Section 437g(a)(1) has no stand-

ing requirement. Thus, petitioners need not wait to be ex-

cluded from a future debate before filing a complaint with the

FEC. Here, the selection criteria that petitioners challenge

be presumed that petitioners will henceforth present

any administrative complaint within a time period

that will allow full and adequate consideration of their

claims by the FEC and, if necessary, by the courts.‘

As we demonstrate below, the court of appeals’

decision in this case would not warrant the exercise

of this Court’s power of discretionary review in the

absence of a suggestion of mootness. Because the

Court would not otherwise grant review in this case,

it is neither necessary nor appropriate for the Court

to disturb the judgment of the court of appeals merely

because the controversy has subsequently become

moot. Accordingly, the petition should be denied. See

Dove v. United States, 423 U.S. 325 (1976) (per

curiam).°

were announced over a year before the date of the first Pre-

sidential debate. See Pet. App. A5.

4 Nor is the 120-day period clearly “too short to be fully

litigated prior to its cessation or expiration.” Weinstein v.

Bradford, 423 U.S. at 149. In seeking review by this Court,

petitioners did not seek certiorari before judgment, see Sup.

Ct. R. 11, or other emergency relief, nor did they file a petition

for a writ of certiorari before the expiration of the 120-day

period that was the basis for the decision below.

5 Beeause the decision whether to grant review on any issue

(including mootness) is discretionary with this Court, Sup. Ct.

R. 10, we consistently have argued that the Court should deny

review of cases that have become moot after the court of

appeals entered its judgment but before this Court has acted on

the petition, when such cases do not present any question that

would independently be worthy of this Court’s review. See,

e.g., U.S. Br. in Opp. at 5-8, Velsicol Chemical Corp. v. United

States, cert. denied, 435 U.S. 942 (1978) (No. 77-900) (arguing

that Court should deny certiorari in moot cases that would not

have warranted review on the merits); Robert L. Stern,

Eugene Gressman, Stephen K. Shapiro, and Kenneth S. Geller,

Supreme Court Practice § 18.5, at 724 n.29 (7th ed. 1993)

2. The court of appeals’ holding that the district

court lacked jurisdiction to consider petitioners’

claims before the expiration of the 120-day period is

correct, and does not warrant further review. In Cort

v. Ash, 422 U.S. 66 (1975), this Court held that a com-

plainant seeking injunctive relief under the FECA

must at least first exhaust administrative remedies

before the Commission. Jd. at 75-76 & n.9.° When

Congress subsequently amended the FECA, in 1976,

it confirmed that construction by specifying that the

FEC’s jurisdiction over civil enforcement is “exclu-

sive,” 2 U.S.C. 437¢(b)(1), and it clarified that, except

as provided in Section 437g(a)(8), the power of the

Commission to initiate civil actions under Section

437g “shall be the exclusive civil remedy for the

enforcement of the provisions of this Act.” 2 U.S.C.

437d(e). See also Gabawer v. Woodcock, 594 F.2d 662,

673 (8th Cir.) (en banc), cert. denied, 444 U.S. 841

(1979); McNamara v. Johnston, 522 F.2d 1157, 1161-

1162 (7th Cir. 1975), cert. denied, 425 U.S. 911 (1976).

(discussing Velsicol doctrine and stating that the Court appears

to follow the argument advanced in the government’s brief in

that case); but see 13A Charles Alan Wright, Arthur R. Miller

and Edward H. Cooper, Federal Practice and Procedure

§ 3533.10, at 432-435 (2d ed. 1984 & Supp. 1994) (disapproving

Velsicol doctrine and stating that vacatur under United States

v. Munsingwear, 340 U.S. 36 (1950), is always appropriate

when case becomes moot before Court grants certiorari). De-

nial of certiorari is especially appropriate in this case, because

the petition neither requests, nor suggests the possibility of,

vacatur under Munsingwear. We have provided petitioner a

copy of the United States’ Brief in Opposition in Velsicol.

6 The Court further held that no implied cause of action for

damages exists under the FECA. Cort v. Ash, 422 U.S. at 77-

85.

Congress created only one narrow exception to the

Commission’s “exclusive jurisdiction to determine

how and when” to enforce the federal campaign fi-

nance statutes. FEC v. National Conservative

Political Action Committee, 470 U.S. 480, 485-486

(1985). A private complainant may bring a civil action

against the FEC only “{i]f the FEC dismissed [his or

her] complaint or failed to act on it in 120 days.”

470 U.S. at 488. Ifthe district court then orders the

FEC to pursue the complaint, the complainant may

proceed in court directly against the respondent in

the administrative proceeding “{ilf, and only if, the

FEC fail[s] to obey such an order.” Ibid.

As the court of appeals observed, it must be

“assume[d] that in formulating [Section 437g’s] proce-

dures Congress * * * knew full well that complaints

filed shortly before elections, or debates, might not be

investigated and prosecuted until after the event.”

Pet. App. Al0. Yet Congress included no exception

for such circumstances in the text of the Act when it

foreclosed judicial review until an administrative

complaint is dismissed or the 120-day period has

elapsed. In contrast, other provisions of the Act ex-

pressly shorten applicable time periods in antici-

pation of an approaching election. See 2 U.S.C.

437f(a)(2); 2 U.S.C. 437g(a)(4)(A)(ii); see also United

States v. Gonzales, No. 95-1605, 1997 WL 85006, at *3

(Mar. 3, 1997) (“Where Congress includes particular

language in one section of a statute but omits it in

another section of the same Act, it is generally

presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”).

Here, petitioners filed suit against the FEC and

CPD just seven days into the 120-day statutory

period, and before the FEC was able to take action on

their administrative complaint. Their suit therefore

was precluded by the plain language of Sections

437d(e) and 437g(a)(8).

Petitioners suggest that the decision below con-

flicts with decisions of other courts of appeals that

have recognized limited exceptions to the exhaustion

doctrine. Pet. 10-11 (citing, e.g., Information Re-

sources, Inc. v. United States, 950 F.2d 1122 (5th Cir.

1992); Venen v. United States, 38 F.3d 100 (8d Cir.

1994)). Section 437g(a)(8), however, contains not only

a jurisdictional requirement of exhaustion, but also

an unequivocal restriction on federal court jurisdic-

tion for a fixed period of time. See FEC v. National

Conservative Political Action Committee, 470 U.S.

at 488. Moreover, as the facts of this case illustrate,

where neither of the conditions precedent to jurisdic-

tion have occurred, a court is not in a position to

“declare that the dismissal of the [administrative]

complaint or the [Commission’s] failure to act is

contrary to law.” 2 U.S.C. 487g(a)(8)(C). The cases

cited by petitioners are therefore inapposite.’

7 In any event, the cases cited by petitioners recognize a

narrow exception to certain statutory exhaustion requirements

“when administrative remedies are inadequate.” Information

Resources, Inc. v. United States, 950 F.2d at 1126; see also

Venen v. United States, 38 F.3d at 104. As we have explained,

see note 3, supra, the FEC’s inability in this case to dispose of

petitioners’ administrative complaint before the Presidential

debates began resulted from the timing of petitioners’ decision

to file that complaint, not from any inadequacy inherent in the

administrative mechanism.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.